The Confused State of Pot Law Enforcement

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SAN FRANCISCO - JUNE 22: A Federal law enforcement agent carries a pile of marijuana plants siezed during a raid of a medicinal marijuana club June 22, 2005 in San Franciso, California. The U.S. Supreme Court recently ruled that Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, concluding that state laws don't protect users from a federal ban on the drug. (Photo by Justin Sullivan/Getty Images)

Updated at 10:17 AM EDT on Thursday, Jun 30, 2011

The case against licensed marijuana grower Chris Bartkowicz in Colorado epitomizes the face off between state and federal enforcement of marijuana laws.

In mid-February, Bartkowicz invited a TV news team from the local NBC affiliate into his suburban Highlands Ranch home to show off his $500,000 marijuana growing operation in the basement. He was quoted saying he hoped to clear $400,000 in profits this year.

The story never aired on TV. The day before it was scheduled, the station’s Website featured a video story titled “The Jungle of Pot in Your Neighbor’s Basement,” partly as a promo for the next night’s newscast.

Federal agents for the Drug Enforcement Administration, DEA, became aware of the story, tracked down Bartkowicz’s address using motor vehicle records and came knocking on his door.

The DEA confiscated 224 plants and assorted equipment, and arrested him for possession with intent to distribute.

He’s out on bond, confined to his home, facing five to 40 years in prison if convicted.

After all marijuana—while decriminalized in Colorado—is still against United States law.

Legal Muddle: Letter of The Laws

Bartkowicz obtained a license from the state of Colorado several years ago that allows him to buy, use and grow marijuana for medical reasons. He says he uses the drug to alleviate pain associated with a car accident.

In Colorado, the system that has evolved since voters approved the use of medical marijuana in 2000 allows each card-carrying “patient” to possess up to two ounces of marijuana and grow as many as six plants.

Under the state law, a patient can have someone else grow the pot simply by possessing a photocopy of the card. Medical marijuana dispensaries—there are some 400 in the Denver metro area alone—often act as go-betweens, supplying growers with enough patients to mount large growing operations.

Dispensary owners and growers are also licensed by the state and are known as “caregivers.” Bartkowicz is a licensed caregiver for 12 patients, which would legally allow him to grow 72 plants. But he was growing 224 plants, which law enforcement authorities maintain is ample justification for his arrest.

"He is in possession far in excess of what the state law allows a caregiver to have as far as marijuana," says U.S. Attorney David Gaouette. "He was in violation of federal laws and he had the intent to distribute marijuana."

Bartkowicz counters, saying, "If I knew what I was doing was illegal, I would have never made a public display of myself. I would not have put myself in the line of fire if I was knowingly violating the law."

An outcry over Bartkowicz's arrest escalated after Jeffrey Sweetin, special agent in charge of the Denver DEA, told The Denver Post: "We're still going to continue to investigate and arrest people...Technically, every dispensary in the state is in blatant violation of federal law…The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."

Democratic Congressman Jared Polis, who represents the Boulder area, sent a scathing letter to Attorney General Eric Holder and President Obama demanding that the DEA be required to uphold the administration's new policy of respecting medical marijuana laws.

In part, it read: “Agent Sweetin's comment that ‘we arrest everybody’ is of great concern to me and to the people of Colorado, who overwhelmingly voted to allow medical marijuana. Coloradans suffering from debilitating medical conditions...have expressed their concern to me that the DEA will come into medical marijuana dispensaries, which are legal under Colorado law, and ‘arrest everybody’ present. Although Agent Sweetin reportedly has backed away from his comments, he has yet to issue a written clarification or resign, thus the widespread panic in Colorado continues.”

US Changes Policy

The Bartkowicz case resulted in a new policy, spelled out in a three-page memo by Deputy Attorney General David Ogden, stating that authorities shouldn't target people in compliance with state laws on medical marijuana. Nevertheless, the memo said authorities should remain on the lookout for those posing as medical marijuana operators who might be marketing pot illegally.

“Claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws,” the memo states. “Federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department's core enforcement priorities.”

Sweetin told Westword, a local weekly newspaper, that given the information he had about Bartkowicz, he thought he "may be outside the line."

“The question really was, are dispensaries in violation of federal law. The answer is yes." Sweetin added. "Clearly. I don't think anybody doubts that. But we have never raided a dispensary."

Sweetin also attempted to clarify the growing confusion between local, state and federal marijuana laws and the difficulties of enforcement.

"People need to understand I enforce federal law,” he said in the interview. “As long as marijuana is a Schedule I narcotic, it's not medicine. I don't believe the medicinal uses of marijuana have been proven enough to move it to a Schedule II…If marijuana were moved to Schedule II, that would change how it is enforced." (Schedule I and Schedule II are drug classifications under federal drug statues).

Scorecard Needed: City, State, Federal

Coloradans involved in the medical marijuana business may have a more local fight on their hands.

Colorado Attorney General John Suther says medical marijuana dispensaries "are a violation of federal law, and it's up to the federal government to say whether they want to expend resources to prosecute them."

“Right now, they're saying we shouldn't expend those resources, but that could change," adds Suther. "Someone else could become president, for example, and that person could say, 'We're going to enforce the federal law.'"

President Barack Obama made his support for medical marijuana known during the 2008 election campaign and it has since become official policy.

That may be, but in some ways it makes the confusion even more worrisome.

“You have an attorney general echoing the DEA position that medical marijuana dispensaries are illegal under state law,” says Rob Corry, a Denver lawyer who specializes in representing medical marijuana patients. “So you have hundreds of openly operating storefronts that the attorney general thinks are illegal. That’s scary.”

It’s enough to worry David Nugent, who owns the Herban Wellness dispensary in Denver. “We’re scared of the DEA,” he says. “They have to give us a chance to figure this out—if they want it figured out. We have to have time and leeway and immunity.”

Jack Cary, a partner in the Greenwerkz dispensary in suburban Edgewater, reacted similarly. “How can you not be scared?”

Present controversy and future uncertainty aside, it’s not as if Denver voters haven’t made themselves clear on the issues. Aside from opting to legalize medical marijuana in 2000, voters in 2005 made Denver the first major city in America to legalize up to an ounce of marijuana for personal consumption for those over 21 years old.

In November 2007, Denver passed an initiative to make cannabis the "lowest law enforcement priority." Seattle; Oakland, Calif.; Portland, Ore., Missoula, Mont.; and a number of smaller California cities have passed similar ordinances.

Colorado politicians and law enforcement agencies, however, stressed that both Denver votes still conflict with state law, so police can arrest for possession of cannabis because Colorado state and federal penalties remain in effect.

Arguably, arrests for possession reflected some confusion in the beginning. In 2005, prosecutors handled 2,200 cases in which possession of less than an ounce of marijuana was at least one of the charges. Oddly enough that rose to 2,500 in 2006. By 2007, however, it was down to 1,841. In 2008, there were 1,658 such cases; in 2009, 1,696.

In California—the first of 14 states to legalize medical marijuana and where dispensaries also flourish—voters will consider full legalization this year. Nevertheless, there still were 17,000 felony arrests and 61,000 misdemeanor arrests in 2008.

That’s enough for U.S. Sen. Barbara Boxer, D-Calif., to stay off the legalization bandwagon.

“Senator Boxer does not support this initiative because she shares the concerns of police chiefs, sheriffs and other law enforcement officials that this measure could lead to an increase in crime, vehicle accidents and higher costs for local law enforcement agencies," says campaign manager Rose Kapolczynski. "She supports current law in California, which allows for the use of medicinal marijuana with a doctor's prescription."

America has a schizophrenic approach to marijuana laws, says Phil Cherner, a Denver defense attorney who specializes in felony marijuana trafficking cases, adding the criminal justice system functions very differently than the actual laws.

“The legislatures pass laws to create these drug courts with potentially stiff penalties,” says Cherner, also a member of the city’s 10-member Marijuana Policy Review Panel. “But if you get down on your knees and say you’re sorry, they give you a soft penalty, which is better than going to jail. Half the time the system panders to the drugs-are-horrible crowd. But the day-to-day workings of the system are much more understanding. All of this ought to be decriminalized and treated administratively or medically...Politicians and the police will be the last people on earth to figure out the public doesn’t care about marijuana any more."